UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 or 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of February 2025
Commission File No. 001-32500
TRX GOLD Corporation
(Translation of registrant’s name into English)
277 Lakeshore Road East, Suite 403
Oakville, Ontario Canada L6J 6J3
(647)-515-3310
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under the cover Form 20-F or Form 40-F.
Form 20-F ☐ Form 40-F ☒
Explanatory Note.
TRX Gold Corp. (the “Company”) is filing
this Form 6-K to provide information regarding (i) two Facility Letters entered into by Buckreef Gold Company Limited (“Buckreef”)
and Stanbic Bank Tanzania Limited, a bank registered and incorporated under the laws of United Republic of Tanzania (“Stanbic”),
and (ii) the At The Market Offering Agreement with H.C. Wainwright & Co., LLC and Roth Capital Partners, LLC.
Entry of a Material Contracts.
Facility Letters
On February 6, 2025, Buckreef entered into certain
banking facilities with Stanbic pursuant to two separate facility letters. The two facility letters consist of a USD$5.0 million revolving
credit facility (the “Credit Facility”) and an approximately USD$4.0 million vehicle and asset financing facility (the “VAF
Facility”) that may be used at the Company’s discretion.
The Credit Facility and the VAF Facility are secured
by all of the assets of Buckreef and includes standard and customary financing terms and conditions, including those related to security,
fees, representations, warranties, covenants, and conditions. In connection with entering into the Credit Facility and VAF Facility, the
Company has agreed to subordinate its loan to Buckreef and has guaranteed the repayment of both the Credit Facility and the VAF Facility.
TANCAN Mining Company Limited, a subsidiary of the Company, has also agreed to subordinate its loan to Buckreef in connection with the
Credit Facility and the VAF Facility.
Buckreef is 55.0% owned by the Company and 45% owned
by State Mining Corporation of Tanzania.
The Credit Facility and the VAF Facility are filed
as Exhibits 10.1 and 10.2, respectively, to this Form 6-K. The foregoing summaries of the terms of these documents are subject to, and
qualified in their entirety by, such documents, which are incorporated herein by reference.
At The Market Offering Agreement
On February 7, 2025, the Company entered into an At
The Market Offering Agreement (the “Agreement”) with H.C. Wainwright & Co., LLC (the “Lead Manager”) and Roth
Capital Partners, LLC (collectively, the “Managers”), pursuant to which the Company may offer and sell, from time to time,
through the Managers, common shares without par value (the “Shares”) having an aggregate offering price of up to USD$25,000,000.
Under the Agreement, the Lead Manager may sell Shares by any method permitted by law deemed to be an “at-the-market distribution”
under National Instrument 44-102 Shelf Distributions, including, without limitation, sales made through the NYSE American, on any other
existing trading market for the Common Shares in the United States or to or through a market maker. The Lead Manager may also sell Shares
in privately negotiated transactions, provided that the Lead Manager receives the Company’s prior written approval for any sales
in privately negotiated transactions and if so provided in the “Plan of Distribution” section of the U.S. Prospectus or a
supplement to the U.S. Prospectus or a new U.S. Prospectus Supplement disclosing the terms of such privately negotiated transaction.
No Shares in the offering will be sold on the Toronto
Stock Exchange or any other trading market in Canada.
The Company intends to use the net proceeds from the
offering primarily for its drilling, exploration and technical work for the development of the sulphide mineralized material at the Buckreef
Gold Project, and for working capital and for other general corporate purposes. Subject to the terms and conditions of the Agreement,
the Lead Manager will use commercially reasonable efforts, consistent with its normal trading and sales practices and applicable state
and federal law, rules and regulations and the rules of the NYSE American, to sell the Shares from time to time based upon the Company’s
instructions, including any price, time or size limits or other customary parameters or conditions the Company may impose.
The Company will pay the Lead Manager a commission of 3.0% of the gross sales price of the Shares sold.
The Company has also agreed to reimburse the Lead Manager for certain specified expenses, including the reasonable fees and expenses of
the Lead Manager’s legal counsel in an amount not to exceed $50,000. The Company shall also reimburse the Lead Manager for Lead
Manager’s counsel’s fees in connection with each due diligence update session up to a maximum of $2,500 per update, plus any
incidental expense incurred by the Lead Manager in connection therewith.
The foregoing description of the terms of the Agreement
does not purport to be complete and is subject to, and qualified in its entirety by reference to, the Agreement, which is filed herewith
as Exhibit 10.1 and is incorporated herein by reference.
The Shares will be issued pursuant to the Company’s
previously filed and effective registration statement on Form F-10 (No. 333-283907) filed with the Securities and Exchange Commission.
This report on Form 6-K shall not constitute an offer to sell or the solicitation of an offer to buy Shares, nor shall there be any sale
of the Shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state or jurisdiction.
Incorporation by Reference.
The forgoing discussions and Exhibits 10.1, 10.2 and 10.3 attached hereto
are hereby incorporated by reference into the Company’s registration statements on Form F-10 (No. 333-283907), on Form F-3 (Nos.
333-252876 and 333-255526) and on Form S-8 (No. 333-234078) to be a part thereof from the date on which this report is submitted, to the
extent not superseded by documents or reports subsequently filed.
Exhibits.
The following exhibits are filed as part of this Form 6-K.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Form 6-K report to be signed on its behalf by the undersigned, thereunto duly authorized.
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TRX Gold Corporation |
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(Registrant) |
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By: |
/s/ Stephen Mullowney |
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Stephen Mullowney, Chief Executive Officer |
Date: February 7, 2025
4
Exhibit 10.1
Exhibit 10.2
Exhibit 10.3
AT THE MARKET OFFERING AGREEMENT
February 7, 2025
H.C. Wainwright & Co., LLC, as Lead Manager
430 Park Avenue
New York, NY 10022
Roth Capital Partners, LLC
888 San Clemente Drive
Newport Beach, CA 92660
Ladies and Gentlemen:
TRX Gold Corporation, a corporation incorporated under
the Business Corporations Act (Alberta) (the “Company”), confirms its agreement (this “Agreement”)
with H.C. Wainwright & Co., LLC (the “Lead Manager”) and Roth Capital Partners, LLC (“Roth”
and, collectively with the Lead Manager, the “Managers” and, each, a “Manager”) as follows:
1.
Definitions. The terms that follow, when used in this Agreement and any Terms Agreement, shall have the meanings indicated.
“Accountants” shall have
the meaning ascribed to such term in Section 5(n).
“Act” shall mean the United
States Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Action” shall have the
meaning ascribed to such term in Section 4(s).
“Affiliate” shall have
the meaning ascribed to such term in Section 4(q).
“Annual Information Form”
means Form 51-102F2 – Annual Information Form under Canadian Securities Laws.
“Applicable Time” shall
mean, with respect to any Shares, the time of sale of such Shares pursuant to this Agreement and any relevant Terms Agreement.
“Base Prospectuses” means,
collectively, the Canadian Base Prospectus and the U.S. Base Prospectus.
“Board” shall have the
meaning ascribed to such term in Section 3(b)(iii).
“Broker Fee” shall have
the meaning ascribed to such term in Section 3(b)(v).
“Business Day” shall mean
any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to
remain closed; provided, however, that, for purposes of clarity, commercial banks shall not be deemed to be authorized or
required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Canadian Base Prospectus”
shall have the meaning ascribed to such term in Section 2.
“Canadian Market” shall
have the meaning ascribed to such term in Section 3(b)(ix).
“Canadian Preliminary Base Prospectus”
shall have the meaning ascribed to such term in Section 2.
“Canadian Prospectus”
shall have the meaning ascribed to such term in Section 2.
“Canadian Prospectus Supplement”
shall have the meaning ascribed to such term in Section 2.
“Canadian Qualifying Authorities”
shall have the meaning ascribed to such term in Section 2.
“Canadian Qualifying Jurisdictions”
shall have the meaning ascribed to such term in Section 2.
“Canadian Securities Laws”
shall have the meaning ascribed to such term in Section 2.
“Commission” shall mean
the United States Securities and Exchange Commission.
“Common Shares” shall
have the meaning ascribed to such term in Section 3.
“Common Share Equivalents”
shall have the meaning ascribed to such term in Section 4(g).
“Company Counsel” shall
have the meaning ascribed to such term in Section 5(l).
“DTC” shall have the meaning
ascribed to such term in Section 3(b)(vii).
“EDGAR” means Electronic
Data Gathering Analysis and Retrieval System.
“Effective Date” shall
mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean
the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall
mean the date and time that this Agreement is executed and delivered by the parties hereto.
“FINRA” shall have the
meaning ascribed to such term in Section 4(e).
“Form F-10” shall mean
the Commission’s Form F-10 registration statement under the Act.
“Form F-X” shall have
the meaning ascribed to such term in Section 2.
“Free Writing Prospectus”
shall mean a free writing prospectus, as defined in Rule 405.
“IFRS” shall have the
meaning ascribed to such term in Section 4(o).
“Incorporated Documents”
shall mean the documents or portions thereof filed with the Commission or the Reviewing Authority on or prior to the Effective Date that
are incorporated by reference in the Registration Statement or the Prospectuses and any documents or portions thereof filed with the Commission
or the Reviewing Authority after the Effective Date that are deemed to be incorporated by reference in the Registration Statement or the
Prospectuses.
“Intellectual Property Rights”
shall have the meaning ascribed to such term in Section 4(y).
“Issuer Free Writing Prospectus”
shall mean an issuer free writing prospectus, as defined in Rule 433.
“Liens” shall have the
meaning ascribed to such term in Section 4(a).
“Losses” shall have the
meaning ascribed to such term in Section 8(d).
“Material Adverse Effect”
shall have the meaning ascribed to such term in Section 4(b).
“Material Permits” shall
have the meaning ascribed to such term in Section 4(w).
“Net Proceeds” shall have
the meaning ascribed to such term in Section 3(b)(v).
“NI 44-102” means National
Instrument 44-102 Shelf Distributions.
“Permitted Free Writing Prospectus”
shall have the meaning ascribed to such term in Section 5(g).
“Proceeding” shall have
the meaning ascribed to such term in Section 4(b).
“Prospectus Supplements”
means, collectively, each Canadian Prospectus Supplement and each U.S. Prospectus Supplement.
“Prospectuses” means,
collectively, the Canadian Prospectus and the U.S. Prospectus.
“Registration Statement”
shall mean the shelf registration statement (File Number 333-283907) on Form F-10, including exhibits and financial statements
and any prospectus supplement relating to the offer and sale of the Shares pursuant to this Agreement that is filed with the Commission
and deemed part of such registration statement, as amended on each Effective Date and, in the event any post-effective amendment thereto
becomes effective, shall also mean such registration statement as so amended.
“Representation Date”
shall have the meaning ascribed to such term in Section 5(k).
“Required Approvals” shall
have the meaning ascribed to such term in Section 4(e).
“Reviewing Authority”
means the Ontario Securities Commission.
“Rule 158”, “Rule 164”,
“Rule 172”, “Rule 173”, “Rule 405”, and “Rule 433”
refer to such rules under the Act.
“Sales Notice” shall have
the meaning ascribed to such term in Section 3(b)(i).
“SEC Reports” shall have
the meaning ascribed to such term in Section 4(n).
“SEDAR+” means System
for Electronic Document Analysis and Retrieval+.
“Settlement Date” shall
have the meaning ascribed to such term in Section 3(b)(vii).
“Shares” shall have the
meaning ascribed to such term in Section 3.
“Shelf Procedures” shall
have the meaning ascribed to such term in Section 2.
“Shelf Securities” shall
have the meaning ascribed to such term in Section 2.
“Subsidiary” shall have
the meaning ascribed to such term in Section 4(a).
“Terms Agreement” shall
have the meaning ascribed to such term in Section 3(a).
“Trading Day” means a
day on which the Trading Market is open for trading.
“Trading Market” means
the NYSE American.
“TSX” means the Toronto
Stock Exchange.
“U.S. Base Prospectus”
shall mean the base prospectus relating to the Shelf Securities contained in the Registration Statement at the Execution Time.
“U.S. Prospectus” shall
mean the U.S. Base Prospectus, as supplemented by the most recently filed U.S. Prospectus Supplement (if any) and together with any Issuer
Free Writing Prospectus.
“U.S. Prospectus Supplement”
shall have the meaning ascribed to such term in Section 2.
2.
Prospectuses and Registration Statement Filings. The Company has prepared and filed with the securities regulatory authorities
(“Canadian Qualifying Authorities”) in each of the provinces and territories of Canada, except Quebec (the “Canadian
Qualifying Jurisdictions”) in accordance with applicable securities laws and the respective applicable rules and regulations
under such laws, together with applicable published national, multilateral and local policy statements, instruments, notices and blanket
orders of the Canadian Qualifying Authorities in each of the Canadian Qualifying Jurisdictions (collectively, “Canadian Securities
Laws”), a preliminary short-form base shelf prospectus, dated December 12, 2024 (the “Canadian Preliminary Base Prospectus”),
in respect of offers and sales, from time to time, of up to US$100,000,000 (or the equivalent thereof in any other currency used to denominate
Shelf Securities based on the applicable exchange rate at the time of issuance of such Shelf Securities) of (i) Common Shares, (ii) debt
securities, (iii) warrants, and (iv) units (collectively, the “Shelf Securities”) and a final short-form base shelf
prospectus, dated January 10, 2025 (“Canadian Base Prospectus”), in respect of offers and sales, from time to time,
of US$100,000,000 (or the equivalent thereof in any other currency used to denominate Shelf Securities based on the applicable exchange
rate at the time of issuance of such Shelf Securities) of the Shelf Securities, and includes all documents incorporated therein by reference
and the documents otherwise deemed to be a part thereof or included therein pursuant to Canadian Securities Laws. The Reviewing Authority
is the principal regulator of the Company under the passport system procedures provided for under Multilateral Instrument 11-102 Passport
System and National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions in respect of the Shelf Securities
and the offering of Shares. The Reviewing Authority has issued a receipt evidencing that a receipt has been issued on behalf of itself
and the other Canadian Qualifying Authorities, for the Canadian Preliminary Base Prospectus and the Reviewing Authority has issued a receipt
evidencing that a receipt has been issued on behalf of itself and the other Canadian Qualifying Authorities for the Canadian Base Prospectus
(the “Receipts”). The Company has prepared the Canadian Base Prospectus pursuant to National Instrument 44-101—Short
Form Prospectus Distributions and NI 44-102 (together, the “Shelf Procedures”).
Promptly following the execution of this Agreement,
the Company will file with the Reviewing Authority, in accordance with the Shelf Procedures, one or more prospectus supplements relating
to the offer and sale of the Shares pursuant to this Agreement.
As used herein, “Canadian Prospectus Supplement”
means the most recent prospectus supplement relating to the offer and sale of the Shares pursuant to this Agreement, to be filed by the
Company with the Reviewing Authority and the other Canadian Qualifying Authorities, as applicable, in accordance with Canadian Securities
Laws, in the form furnished by the Company to the Manager; and “Canadian Prospectus” means the Canadian Prospectus
Supplement (and any additional Canadian prospectus supplement relating to the offer and sale of Shares under, and prepared in accordance
with the provisions of, this Agreement and filed with the Reviewing Authority and the other Canadian Qualifying Authorities, as applicable,
in accordance with Canadian Securities Laws), together with the Canadian Base Prospectus.
The Company has filed, in accordance with the provisions
of the Act, with the Commission the Registration Statement. The Company has also filed with the Commission an appointment of agent for
service of process on Form F-X (the "Form F-X") in conjunction with the initial filing of the Registration Statement.
The Company will, concurrently with the filing of the
Canadian Prospectus Supplement with the Reviewing Authority and the other Canadian Qualifying Authorities, as applicable, file the Canadian
Prospectus Supplement with the Commission with such deletions therefrom and additions or changes thereto as are permitted or required
by Form F-10. As used herein, “U.S. Prospectus Supplement” means the most recent prospectus supplement relating to
the offer and sale of the Shares pursuant to this Agreement, to be filed by the Company with the Commission in accordance with the requirements
of Form F-10, in the form furnished by the Company to the Manager.
Any reference herein to the Registration Statement,
the Base Prospectuses, the Prospectus Supplements (including each of the U.S. Prospectus Supplement and the Canadian Prospectus Supplement)
or the Prospectuses (including each of the U.S. Prospectus and the Canadian Prospectus) or any amendment or supplement thereto shall be
deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectuses, the Prospectus
Supplements or the Prospectuses shall be deemed to refer to and include the filing or furnishing of any document with or to the Commission,
the Reviewing Authority and Canadian Qualifying Authorities, as applicable, on or after the Effective Date of the Registration Statement
or the date of the Base Prospectuses, the Prospectus Supplements or the Prospectuses, as the case may be, and deemed to be incorporated
by reference therein.
3.
Sale and Delivery of Shares. The Company proposes to issue and sell through or to the Managers, as sales agent and/or principal,
from time to time during the term of this Agreement and on the terms set forth herein, common shares, no par value, of the Company (“Common
Shares”) (such Common Shares to be issued and sold pursuant to this Agreement, the “Shares”); provided,
however, that in no event shall the Company issue or sell through the Manager such number of Shares that exceeds (a) the dollar
amount of Common Shares registered on the Registration Statement and as reflected on the U.S. Prospectus Supplement, pursuant to which
the offering is being made, (b) the number of authorized but unissued Common Shares (less the number of Common Shares issuable upon exercise,
conversion or exchange of any outstanding securities of the Company or otherwise reserved from the Company’s authorized capital
stock) or (c) the amount authorized by the Board from time to time to be issued and sold under this Agreement (the lesser of (a), (b)
and (c), the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree
that compliance with the limitations set forth in this Section 3 on the number and aggregate sales price of Shares issued and sold under
this Agreement shall be the sole responsibility of the Company and that the Manager shall have no obligation in connection with such compliance.
Each of the Company and each of the Managers hereby agree and acknowledge that all sales and solicitations of sales of Shares by the Managers
as agent of the Company shall be made solely in the United States and not on or through the facilities of any Canadian Market and shall
otherwise be made in compliance with Section 3(b)(ix) of this Agreement.
(a)
Appointment of Lead Manager as Selling Agent; Terms Agreement. For purposes of selling the Shares through the Lead Manager,
the Company hereby appoints the Lead Manager as exclusive agent of the Company for the purpose of selling the Shares of the Company pursuant
to this Agreement and the Lead Manager agrees to use its commercially reasonable efforts consistent with its normal trading and sales
practices to sell the Shares on the terms and subject to the conditions stated herein. The Company agrees that, whenever it determines
to sell the Shares directly to the Lead Manager as principal, the Company will enter into a separate agreement (each, a “Terms
Agreement”) in substantially the form of Annex I hereto, relating to such sale in accordance with Section 3(c) of this
Agreement.
(b)
Agent Sales. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth,
the Company will issue and agrees to sell Shares from time to time through the Lead Manager, acting as sales agent, and the Lead Manager
agrees to use its commercially reasonable efforts to sell, as sales agent for the Company, on the following terms:
(i)
The Shares are to be sold on a daily basis or otherwise as shall be agreed to by the Company and the Lead Manager on any day that
(A) is a Trading Day, (B) the Company has instructed the Lead Manager by telephone (confirmed promptly by electronic mail) to make
such sales (“Sales Notice”) and (C) the Company has satisfied its obligations under Section 7 of this Agreement. The
Company will designate the maximum amount of the Shares to be sold by the Lead Manager daily (subject to the limitations set forth in
Section 3(d)) and the minimum price per Share at which such Shares may be sold. Subject to the terms and conditions hereof, the Lead Manager
shall use its commercially reasonable efforts consistent with its normal trading and sales practices to sell on a particular day all of
the Shares designated for the sale by the Company on such day. The gross sales price of the Shares sold under this Section 3(b) shall
be the market price for the Common Shares sold by the Lead Manager under this Section 3(b) on the Trading Market at the time of sale
of such Shares.
(ii)
The Company acknowledges and agrees that (A) there can be no assurance that the Lead Manager will be successful in selling
the Shares, (B) the Lead Manager will incur no liability or obligation to the Company or any other person or entity if it does not
sell the Shares for any reason other than a failure by the Lead Manager to use its commercially reasonable efforts consistent with its
normal trading and sales practices and applicable law and regulations to sell such Shares as required under this Agreement, and (C) the
Lead Manager shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise specifically
agreed by the Lead Manager and the Company pursuant to a Terms Agreement.
(iii)
The Company shall not authorize the issuance and sale of, and the Lead Manager shall not be obligated to use its commercially reasonable
efforts to sell, any Share at a price lower than the minimum price therefor designated from time to time by the Company’s Board
of Directors (the “Board”), or a duly authorized committee thereof, or such duly authorized officer of the Company,
and notified to the Lead Manager in writing. The Company or the Lead Manager may, upon notice to the other party hereto by telephone (confirmed
promptly by electronic mail), suspend the offering of the Shares for any reason and at any time; provided, however, that
such suspension or termination shall not affect or impair the parties’ respective obligations with respect to the Shares sold hereunder
prior to the giving of such notice.
(iv)
The Lead Manager may sell Shares by any method permitted by law deemed to be an “at-the-market distribution” under
NI 44-102, including, without limitation, sales made through the Trading Market, on any other existing trading market for the Common Shares
in the United States or to or through a market maker. The Lead Manager may also sell Shares in privately negotiated transactions, provided
that the Lead Manager receives the Company’s prior written approval for any sales in privately negotiated transactions and if so
provided in the “Plan of Distribution” section of the U.S. Prospectus or a supplement to the U.S. Prospectus or a new U.S.
Prospectus Supplement disclosing the terms of such privately negotiated transaction.
(v)
The compensation to the Lead Manager for sales of the Shares under this Section 3(b) shall be a placement fee of 3.0% of the gross
sales price of the Shares sold pursuant to this Section 3(b) (“Broker Fee”). The foregoing rate of compensation shall
not apply when the Lead Manager acts as principal, in which case the Company may sell Shares to the Lead Manager as principal at a price
agreed upon at the relevant Applicable Time pursuant to a Terms Agreement. The remaining proceeds, after deduction of the Broker Fee and
deduction of any transaction fees imposed by any clearing firm, execution broker, or governmental or self-regulatory organization in respect
of such sales, shall constitute the net proceeds to the Company for such Shares (the “Net Proceeds”).
(vi)
The Lead Manager shall provide written confirmation (which may be by electronic mail) to the Company following the close of trading
on the Trading Market each day in which the Shares are sold under this Section 3(b) setting forth the number of the Shares sold on such
day, the aggregate gross sales proceeds and the Net Proceeds to the Company, and the compensation payable by the Company to the Lead Manager
with respect to such sales.
(vii)
Settlement for sales of the Shares will occur at 10:00 a.m. (New York City time) on the first (1st) Trading Day (or any such
shorter settlement cycle as may be in effect pursuant to Rule 15c6-1 under the Exchange Act from time to time) following the date on which
such sales are made, or at such time as the Company and the Lead Manager may mutually agree (each such day, a “Settlement Date”).
On each Settlement Date, the Shares sold through the Lead Manager for settlement on such date shall be issued and delivered by the Company
to the Lead Manager against payment of the Net Proceeds for the sale of such Shares. Settlement for all such Shares shall be effected
by free delivery of the Shares to the Lead Manager’s account at The Depository Trust Company (“DTC”) via the
Deposit/Withdrawal at Custodian System (which Shares in all cases shall be freely tradeable, transferable, registered shares in good deliverable
form), in return for Net Proceeds in same day funds delivered to the account designated by the Company. If the Company or its transfer
agent (if applicable) shall default on its obligation to deliver the Shares on any Settlement Date, in addition to and in no way limiting
the rights and obligations set forth in Section 8 hereto, the Company shall (A) indemnify and hold the Lead Manager harmless against
any loss, claim or damage or reasonable, documented expense (including reasonable and documented legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and (B) pay the Lead Manager any commission, discount or other compensation
to which the Lead Manager would otherwise have been entitled absent such default.
(viii)
At each Applicable Time, Settlement Date, and Representation Date, the Company shall be deemed to have affirmed each representation
and warranty contained in this Agreement as if such representation and warranty were made as of such date, modified as necessary to relate
to the Registration Statement and the Prospectuses as amended as of such date. Any obligation of the Lead Manager to use its commercially
reasonable efforts to sell the Shares on behalf of the Company shall be subject to the continuing accuracy of the representations and
warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the continuing satisfaction of
the additional conditions specified in Section 7 of this Agreement.
(ix)
Each party covenants to the other party that (i) it will not undertake any act, advertisement, solicitation, conduct or negotiation
directly or indirectly in furtherance of the sale of the Shares in Canada; and (ii) it will not undertake an offer or sale of any
Shares through the facilities of the TSX or any other Canadian trading market (together with the TSX, a “Canadian Market”).
(x)
If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders
of Common Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution” and the record date for the determination of shareholders entitled to receive the Distribution,
the “Record Date”), the Company hereby covenants that, in connection with any sales of Shares pursuant to a Sales Notice
on the Record Date, the Company shall issue and deliver such Shares to the Lead Manager on the Record Date and the Record Date shall be
the Settlement Date and the Company shall cover any additional costs of the Lead Manager in connection with the delivery of Shares on
the Record Date.
(c)
Term Sales. If the Company wishes to sell the Shares pursuant to this Agreement in a manner other than as set forth in Section
3(b) of this Agreement (each, a “Placement”), the Company will notify the Lead Manager of the proposed terms of such
Placement. If the Lead Manager, acting as principal, wishes to accept such proposed terms (which it may decline to do for any reason in
its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Lead Manager and the Company will
enter into a Terms Agreement setting forth the terms of such Placement. The terms set forth in a Terms Agreement will not be binding on
the Company or the Lead Manager unless and until the Company and the Lead Manager have each executed such Terms Agreement accepting all
of the terms of such Terms Agreement. In the event of a conflict between the terms of this Agreement and the terms of a Terms Agreement,
the terms of such Terms Agreement will control. A Terms Agreement may also specify certain provisions relating to the reoffering of such
Shares by the Lead Manager. The commitment of the Lead Manager to purchase the Shares pursuant to any Terms Agreement shall be deemed
to have been made on the basis of the representations and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the number of the Shares to be purchased by the Lead Manager pursuant
thereto, the price to be paid to the Company for such Shares, any provisions relating to rights of, and default by, underwriters acting
together with the Lead Manager in the reoffering of the Shares, and the time and date (each such time and date being referred to herein
as a “Time of Delivery”) and place of delivery of and payment for such Shares. Such Terms Agreement shall also specify
any requirements for opinions of counsel, accountants’ letters and officers’ certificates pursuant to Section 7 of this Agreement
and any other information or documents required by the Lead Manager.
(d)
Maximum Number of Shares. Under no circumstances shall the Company cause or request the offer or sale of any Shares if,
after giving effect to the sale of such Shares, the aggregate amount of Shares sold pursuant to this Agreement would exceed the lesser
of (A) together with all sales of Shares under this Agreement, the Maximum Amount, (B) the amount available for offer and sale under the
currently effective Registration Statement and (C) the amount authorized from time to time to be issued and sold under this Agreement
by the Board, a duly authorized committee thereof or a duly authorized executive officer, and notified to the Lead Manager in writing.
Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower
than the minimum price authorized from time to time by the Board, a duly authorized committee thereof or a duly authorized executive officer,
and notified to the Lead Manager in writing. Further, under no circumstances shall the Company cause or permit the aggregate offering
amount of Shares sold pursuant to this Agreement to exceed the amount qualified under the Canadian Prospectus Supplement or registered
under the Registration Statement.
(e)
Regulation M Notice. Unless the exceptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange
Act are satisfied with respect to the Shares, the Company shall give the Lead Manager at least one Trading Day’s prior notice of
its intent to sell any Shares in order to allow the Lead Manager time to comply with Regulation M.
4.
Representations and Warranties. The Company represents and warrants to, and agrees with, each of the Managers at the Execution
Time and on each such time that the following representations and warranties are repeated or deemed to be made pursuant to this Agreement,
as set forth below, except as set forth in the Registration Statement, the Prospectuses or the Incorporated Documents:
(a)
Subsidiaries. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth in the Company’s most recent Annual Information Form incorporated by reference into the Company’s most recent
Annual Report on Form 40-F filed with the Commission. The Company owns, directly or indirectly, all of the capital stock or other equity
interests of each Subsidiary free and clear of any “Liens” (which for purposes of this Agreement shall mean a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction), and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation or in default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably
be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement, (ii) a material
adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Registration Statement, the Base Prospectuses, any Prospectus Supplements,
the Prospectuses or the Incorporated Documents, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”)
and no “Proceeding” (which for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened)
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.
(c)
Authorization and Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary
action on the part of the Company and no further action is required by the Company, the Board or the Company’s shareholders in connection
herewith other than in connection with the Required Approvals. This Agreement has been duly executed and delivered by the Company and,
when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Shares
and the consummation by it of the transactions contemplated hereby do not and will not (i) conflict with or violate any provision of the
Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result
in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination,
amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any
agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to
which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected,
or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except
in the case of each of clauses (ii) and (iii), such as could not, individually or in the aggregate, have or reasonably be expected to
result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
“Person” (defined as an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture,
limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind, including
the Trading Market) in connection with the execution, delivery and performance by the Company of this Agreement, other than (i) the filings
required by this Agreement, including the filing of the Canadian Prospectus Supplement and the concurrent filing therewith of the authors
of the Company’s Technical Report (as defined herein) consent and auditor’s consent required pursuant to Section 7.2(2) 2.
of 44-102, with the Reviewing Authority, (ii) the filing with the Commission of the Registration Statement, including the U.S. Prospectus,
(iii) the filing of application(s) to and approval by the Trading Market and the TSX for the listing of the Shares for trading thereon
in the time and manner required thereby, and (iv) such filings as are required to be made under applicable state securities laws and the
rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (collectively, the “Required
Approvals”).
(f)
Issuance of Shares. The Shares, when issued and delivered, will be duly authorized for issuance and sale pursuant to this
Agreement and, when issued and delivered against payment therefor in accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital
stock the maximum number of Common Shares issuable pursuant to this Agreement. The issuance by the Company of the Shares has been registered
under the Act, and all of the Shares are and shall be freely transferable and tradable on the Trading Market by the purchasers thereof
without restriction (other than any restrictions arising solely from an act or omission of such a purchaser). The Shares are being issued
pursuant to the Registration Statement and the issuance of the Shares has been registered by the Company under the Act. The “Plan
of Distribution” section within the Registration Statement permits the issuance and sale of the Shares as contemplated by this
Agreement. Upon receipt of the Shares, the purchasers of such Shares will have good and marketable title to such Shares and the Shares
will be freely tradable on the Trading Market.
(g)
Capitalization. The capitalization of the Company is as set forth in the Prospectuses. The Company has not issued any share
capital since its most recently filed Incorporated Document, other than pursuant to the exercise of employee share options under the Company’s
stock option plans, the issuance of Common Shares to employees pursuant to the Company’s employee share purchase plans and pursuant
to the conversion and/or exercise of securities exercisable or exchangeable for or convertible into Common Shares (“Common Share
Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any
right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by this Agreement. Except as set forth in the SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable
for, or giving any Person any right to subscribe for or acquire, any Common Shares or the share capital of any Subsidiary, or contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional Common Shares
or Common Share Equivalents or the share capital of any Subsidiary. The issuance and sale of the Shares will not obligate the Company
or any Subsidiary to issue Common Shares or other securities to any Person. There are no outstanding securities or instruments of the
Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument
upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or
any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements
by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does
not have any share appreciation rights or “phantom share” plans or agreements or any similar plan or agreement. All of the
outstanding shares of share capital of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued
in compliance with all applicable Canadian, provincial, U.S. federal and state securities laws, and none of such outstanding shares was
issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization
of any shareholder, the Board or others is required for the issuance and sale of the Shares. There are no shareholders agreements, voting
agreements or other similar agreements with respect to the Company’s share capital to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s shareholders.
(h)
Canadian Base Prospectus. At the time the Company filed the Canadian Base Prospectus, the Company was eligible to file a
short-form base shelf prospectus with the Reviewing Authority. The Reviewing Authority has issued a Receipt in respect of the Canadian
Base Prospectus. No order suspending the distribution of the Common Shares or any other securities of the Company has been issued by any
Canadian Qualifying Authority and no proceedings for that purpose have been initiated or are pending or, to the Company's knowledge, are
contemplated or threatened by any Canadian Qualifying Authority, and any request made to the Company on the part of any Canadian Qualifying
Authority for additional information has been complied with.
The Canadian Prospectus, when filed, complied
and, as amended or supplemented, if applicable, will comply in all material respects with applicable Canadian Securities Laws. The Canadian
Prospectus, as amended or supplemented, as of its date, did not and, as of each of the Settlement Dates, if any, will not contain any
untrue statement of a material fact (as defined in the Securities Act (Ontario)) or omit to state a material fact (as defined in
the Securities Act (Ontario)) necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Canadian Prospectus, as amended or supplemented, as of its date, did and, as of each of the Settlement
Dates, if any, will contain full, true and plain disclosure of all material facts relating to the Common Shares and to the Company.
Each document filed or to be filed with the
Canadian Qualifying Authorities and incorporated by reference into the Canadian Prospectus or any amendment or supplement thereto complied,
as at the applicable filing date, or will comply when so filed, in all material respects with the requirements of applicable Canadian
Securities Laws.
(i)
Registration Statement and U.S. Prospectus. The Company meets the requirements for use of Form F-10 under the Act and
has prepared and filed with the Commission the Registration Statement, including the U.S. Base Prospectus, for registration under the
Act of the offering and sale of the Shelf Securities, which includes the Shares, in accordance with the requirements of Form F-10. Such
Registration Statement is effective and available for the offer and sale of the Shares as of the date hereof. As filed, the U.S. Base
Prospectus conformed in all material respects with the applicable requirements of the Act. The Registration Statement, at any Effective
Date, the Execution Time, each Representation Date, any Applicable Time and any Settlement Date and any Time of Delivery, conformed or
will conform in all material respects with the applicable requirements of the rules and regulations under the Act. The Registration Statement,
when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The U.S.
Prospectus does not contain and, as amended or supplemented, if applicable, and at any Effective Date, the Execution Time, each Representation
Date and any Settlement Date and any Time of Delivery, will not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not apply to statements in or omissions from the Registration Statement
or U.S. Prospectus, as applicable, or any amendments or supplements thereto, as applicable, made in reliance upon and in conformity with
information relating to a Manager furnished to the Company in writing by such Manager expressly for use therein.
(j)
Accuracy of Incorporated Documents. The Incorporated Documents, when they were filed with the Reviewing Authority or filed
with or furnished to the Commission, as the case may be, conformed in all material respects with requirements under applicable Canadian
Securities Laws and the Exchange Act and the rules and regulations promulgated thereunder, each as applicable, and none of the Incorporated
Documents, when they were filed with the Reviewing Authority or the Commission, contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made not misleading;
and any further documents so filed and incorporated by reference in the Registration Statement, the Base Prospectuses, the Prospectus
Supplements or the Prospectuses, when such documents are filed with the Reviewing Authority or the Commission, as the case may be, will
conform in all material respects with requirements under applicable Canadian Securities Laws and the Exchange Act and the rules and regulations
promulgated thereunder, each as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(k)
Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Shares and (ii) as of the Execution
Time and on each such time this representation is repeated or deemed to be made (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible
Issuer.
(l)
Free Writing Prospectus. The Company is eligible to use Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus
does not include any information the substance of which conflicts with the information contained in the Registration Statement, including
any Incorporated Documents and any prospectus supplement deemed to be a part thereof that has not been superseded or modified; and each
Issuer Free Writing Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information
furnished to the Company by each of the Managers, respectively, specifically for use therein. Any Issuer Free Writing Prospectus that
the Company is required to file pursuant to Rule 433(d) has been, or will be, filed with the Commission in accordance with the requirements
of the Act and the rules thereunder. Each Issuer Free Writing Prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) or that was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements
of the Act and the rules thereunder. The Company will not, without the prior consent of the Lead Manager, prepare, use or refer to, any
Issuer Free Writing Prospectuses.
(m)
Proceedings Related to Registration Statement. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the subject of a pending proceeding under Section 8A
of the Act in connection with the offering of the Shares. The Company has not received any notice that the Commission has issued or intends
to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing to do so.
(n)
SEC Reports; Reporting in Canada. The Company has complied in all material respects with requirements to file all reports,
schedules, forms, statements and other documents required to be filed by the Company under the Act and the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (or such shorter period as the Company was required
by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, together with the U.S. Prospectus and the U.S. Prospectus Supplement, being collectively referred to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior
to the expiration of any such extension. The Company is in compliance in all material respects with its obligations under Canadian Securities
Laws (including, without limitation, its disclosure obligations pursuant to National Instrument 51-102 – Continuous Disclosure
Obligations and National Instrument 58-101 – Disclosure of Corporate Governance Practices, each as adopted by the Canadian
Securities Administrators). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the
Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(o)
Financial Statements. The consolidated financial statements incorporated by reference in the Registration Statement and
the Prospectuses and any amendments thereof or supplements thereto comply or will comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing or as amended or
corrected in a subsequent filing. Such financial statements have been prepared in accordance with International Financial Reporting Standards
applied on a consistent basis during the periods involved (“IFRS”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by IFRS, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
(p)
Accountants. The Company’s auditors are Dale Matheson Carr-Hilton Labonte LLP, Chartered Professional Accountants.
To the knowledge of the Company, such auditors, which the Company expects will express their opinion with respect to the financial statements
to be included in the Company’s next Annual Report on Form 40-F, are independent with respect to the Company as required by the
Canadian Securities Laws and are independent registered public accountants as required by the Act, the Exchange Act and the rules of the
Public Company Accounting Oversight Board.
(q)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in the Prospectuses or any Incorporated Documents, (i) there has been
no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to IFRS or disclosed in filings made with the Reviewing Authority or the Commission, (iii) the Company has not altered
its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders
or purchased, redeemed or made any agreements to purchase or redeem any shares of its share capital, (v) the Company has not issued any
equity securities to any officer, director or “Affiliate” (defined as any Person that, directly or indirectly through
one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed
under Rule 144 under the Act), except pursuant to existing Company stock option plans, and (vi) no executive officer of the Company or
member of the Board has resigned from any position with the Company. The Company does not have pending before the Commission any request
for confidential treatment of information. Except for the issuance of the Shares contemplated by this Agreement, no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company
or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required
to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been
publicly disclosed at least one (1) Trading Day prior to the date that this representation is made.
(r)
Mining.
(i)
Material Project. The Material Project is the only material mineral property in which the Company has an interest. For purposes
herein, “Material Project” means the Company’s interest in the Buckreef Gold Project in Tanzania, Africa, which
interest is held by the Company through TRX Gold Tanzania Limited, a wholly-owned Subsidiary of the Company.
(ii)
Title to Property. Except as disclosed in the Prospectuses, (a) each of the Company or its Subsidiaries, as applicable,
is the absolute legal and beneficial owner of, and has good and marketable title to or a valid leasehold interest in the Material Project
and all of its other material properties or assets as described in the Prospectuses, free of all liens or encumbrances,; (b) no other
material property rights are necessary for the conduct of the business of the Company or any Subsidiary, as currently conducted; neither
the Company nor any Subsidiary knows of any material claim or the basis for any material claim that could reasonably be expected to adversely
affect the right thereof to use, transfer or otherwise exploit such property rights,; and (c) neither the Company nor any Subsidiary has
any current responsibility or obligation to pay any outstanding material commission, royalty, license fee or similar payment to any Person
with respect to the property rights thereof except pursuant to applicable legislation.
(iii)
Mineral Rights. The Company and any applicable Subsidiaries hold freehold title, leases, licenses, mining claims or other
conventional property, proprietary or contractual interests or rights, recognized in the jurisdiction in which the Material Project is
located, under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, sufficient
to permit the Company or any Subsidiary to explore or exploit (as the case may be) the minerals relating thereto. All property, leases
or claims relating to the Material Project in which the Company or any Subsidiary has any interest or right have been validly applied
for and, if issued, to the knowledge of the Company, issued in accordance with all applicable laws and are valid and subsisting. The Company
and any applicable Subsidiaries have all necessary surface rights, access rights and other necessary rights and interests relating to
the Material Project, granting the Company and any applicable Subsidiaries the right and ability to explore, exploit and mine the mineral
resources as are appropriate in view of the rights and interest therein of the Company or any Subsidiary and the current state of exploration,
with only such exceptions as do not materially interfere with the use made by the Company or any Subsidiary of the rights or interests
so held and each of the proprietary interests or rights and each of the documents, agreements, leases, instruments and obligations relating
thereto referred to above is currently in good standing in the name of the Company or any Subsidiary.
(iv)
Property Agreements. Any and all of the agreements and other documents and instruments pursuant to which the Company or
any Subsidiary holds the Material Project (including any interest in, or right to earn an interest therein), are valid and subsisting
agreements, documents or instruments in full force and effect, enforceable in accordance with the terms thereof (subject to customary
qualifications and exceptions), neither the Company nor any Subsidiary is in default of any of the material provisions of any such agreements,
documents or instruments nor, to the knowledge of the Company, is any such default currently being alleged, and such properties and assets
are in good standing in all material respects under the applicable statutes and regulations of the jurisdictions in which they are situated,
all leases, licenses and claims pursuant to which the Company or any Subsidiary derives the interests thereof in such property and assets
are in good standing and, to the knowledge of the Company, there has been no material default under any such lease, license or claim and
all taxes required to be paid with respect to such properties and assets to the date hereof have been paid. The Material Project (or any
interest therein, or right to earn an interest therein) is not subject to any right of first refusal or purchase or acquisition right
which is not disclosed in the Prospectuses or the Incorporated Documents.
(v)
Technical Report. To the knowledge of the Company, (A) the Technical Report (as defined herein) complies in all material
respects with the requirements of National Instrument 43-101 at the time of filing thereof and (B) the Company made available to the authors
of the Technical Report, prior to the issuance thereof, for the purpose of preparing such report, all material information requested by
them, and none of such information contained any material misrepresentation at the time such information was so provided. “Technical
Report” means National Instrument 43-101 Technical Report: Updated Mineral Resource Estimate for the Buckreef Gold Mine Project,
Tanzania, East Africa”, with an effective date of May 15, 2020, and which was prepared and signed on June 8, 2020.
(s)
Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, proceeding or
investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (Canadian, provincial,
U.S. federal, state, county, local or foreign) (collectively, an “Action”). None of the Actions set forth in the SEC
Reports, (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Shares or (ii) could, if
there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any
Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer
of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company or any Subsidiary under the Exchange Act or the Act.
(t)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable Canadian, provincial,
U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment
and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(u)
Compliance. Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority, or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all Canadian, provincial, U.S. federal, state and local laws and foreign laws relating to taxes,
environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each
case as could not have or reasonably be expected to result in a Material Adverse Effect.
(v)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign
laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(w)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate Canadian, provincial, U.S. federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses
as described in the Registration Statement and Prospectuses, except where the failure to possess such permits could not reasonably be
expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or modification of any Material Permit.
(x)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them that is material to the business of the Company and the Subsidiaries and good and marketable title in all personal property owned
by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i)
Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made
of such property by the Company and the Subsidiaries and (ii) Liens for the payment of Canadian, provincial, U.S. federal, state or other
taxes, for which appropriate reserves have been made therefor in accordance with IFRS and, the payment of which is neither delinquent
nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(y)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None
of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights
has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of
this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included
within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge
of the Company, all Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the
Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(z)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage. To the knowledge of the Company, such insurance contracts and
policies are accurate and complete. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business without a significant increase in cost.
(aa)
Affiliate Transactions. Except as set forth in the SEC Reports, none of the officers or directors of the Company or any
Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or
other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing
for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is
an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary
or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits,
including stock option agreements under any equity incentive plan of the Company.
(bb)
Sarbanes Oxley Compliance. The Company and the Subsidiaries are in compliance with any and all applicable requirements of
the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with IFRS and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general
or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have established disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure
controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and
the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the
“Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
(cc)
Certain Fees. Other than payments to be made to the Managers, no brokerage or finder’s fees or commissions are or
will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by this Agreement. The Managers shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may
be due in connection with the transactions contemplated by this Agreement.
(dd)
No Other Sales Agency Agreement. The Company has not entered into any other sales agency agreements or other similar arrangements
with any agent or any other representative in respect of “at the market” offerings of the Shares.
(ee)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the
Shares from the Lead Manager pursuant to this Agreement, will not be or be an Affiliate of, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not
become an “investment company” subject to registration under the Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so as to reasonably ensure that it or its Subsidiaries will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
(ff)
Listing and Maintenance Requirements. The Common Shares are listed on the Trading Market and the TSX and the issuance and
sale of the Shares as contemplated by this Agreement does not contravene the rules and regulations of the Trading Market or the TSX. The
Common Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to,
or which to its knowledge is likely to have the effect of, terminating the registration of the Common Shares under the Exchange Act nor
has the Company received any notification that the Commission is contemplating terminating such registration. The Company has not, in
the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Shares are or have been listed or
quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company
is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance
requirements. The Common Shares are currently eligible for electronic transfer through the Depository Trust Company or another established
clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic transfer.
(gg)
Application of Takeover Protections. The Company and the Board have taken all necessary action, if any, in order to render
inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or
other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws
of its state of incorporation that is or could become applicable to the Shares.
(hh)
Solvency. Based on the consolidated financial condition of the Company as of the date hereof, (i) the fair saleable value
of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts
and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to
liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or
in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability
to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt) within
one year from the date hereof. The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for
reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the date hereof. The
SEC Reports set forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for
which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any
liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course
of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the
same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value
of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance with IFRS. Neither the Company nor
any Subsidiary is in default with respect to any Indebtedness.
(ii)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all Canadian federal and provincial and United
States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction
to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment
of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any
Subsidiary know of no basis for any such claim.
(jj)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(kk)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Managers in connection with the Shares.
(ll)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i)
in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market
value of the Common Shares on the date such stock option would be considered granted under IFRS and applicable law. No stock option granted
under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no
Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with,
the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results
or prospects.
(mm)
Cybersecurity. (i)(x) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective
customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively,
“IT Systems and Data”) and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of
any event or condition that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data;
(ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules
and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the
Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(nn)
Compliance with Data Privacy Laws. (i) the Company and the Subsidiaries have in place, comply with, and take appropriate
steps reasonably designed to ensure compliance with their policies and procedures relating to all applicable data privacy and security
laws and regulations, (collectively, “Privacy Laws”) and security and the collection, storage, use, disclosure, handling
and analysis of Personal Data (the “Policies”); (ii) the Company provides accurate notice of its applicable Policies
to its customers, employees, third party vendors and representatives as required by Privacy Laws; and (iv) applicable Policies provide
accurate and sufficient notice of the Company’s then-current privacy practices relating to its subject matter, and do not contain
any material omissions of the Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data”
means (i) a natural person’s name, street address, telephone number, email address, photograph, social security number, bank
information, or customer or account number; (ii) any information which would qualify as “personally identifying information”
under the Federal Trade Commission Act, as amended; and (iii) any other piece of information that allows the identification of such
natural person, or his or her family, or permits the collection or analysis of any identifiable data related to an identified person’s
health or sexual orientation. (i) None of such disclosures made or contained in any of the Policies have been inaccurate, misleading,
or deceptive in violation of any Privacy Laws and (ii) the execution, delivery and performance of this Agreement will not result
in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries, (i) has, to the knowledge of the Company,
received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential violation
by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part,
any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or
(iii) is a party to any order, decree, or agreement by or with any court or arbitrator or governmental or regulatory authority that
imposed any obligation or liability under any Privacy Law.
(oo)
Office of Foreign Assets Control. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company,
any of the directors, officers or employees of the Company or its Subsidiaries, is an individual or entity that is, or is owned or controlled
by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident in a country or territory
that is the subject of Sanctions. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the
transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner
or other individual or entity: (i) to fund or facilitate any activities or business of or with any individual or entity or in any
country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii) in any other manner that
will result in a violation of Sanctions by any individual or entity (including any individual or entity participating in the transactions
contemplated hereby, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of
its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any individual or entity,
or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(pp)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending August 31, 2025.
(qq)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Manager’s
request.
(rr)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve.
(ss)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.
(tt)
FINRA Member Shareholders. There are no affiliations with any FINRA member firm among the Company’s officers or directors
or, to the knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Registration
Statement and the Prospectuses.
5.
Agreements. The Company agrees with the Managers that:
(a)
Right to Review Amendments and Supplements to Registration Statement and Prospectuses. During any period when the delivery
of a prospectus relating to the Shares is required (including in circumstances where such requirement may be satisfied pursuant to Rule 172,
173 or any similar rule) to be delivered under the Act in connection with the offering or the sale of Shares, the Company will not file
any amendment to the Registration Statement or supplement (including any Prospectus Supplement) to the Base Prospectuses unless the Company
has furnished to each of the Managers a copy for its review prior to filing and will not file any such proposed amendment or supplement
to which the Lead Manager reasonably objects. The Company has properly completed the U.S. Prospectus, in a form approved by the Lead Manager,
and filed such U.S. Prospectus as amended or supplemented at the Execution Time with the Commission pursuant to the instructions to Form
F-10 by the Execution Time and will cause any supplement to the U.S. Prospectus to be filed with the Commission in a form approved by
the Lead Manager pursuant to the instructions to Form F-10 within the time period prescribed thereby and will provide evidence reasonably
satisfactory to the Lead Manager of such timely filing. The Company will promptly advise the Lead Manager (i) when the Canadian Prospectus,
and any supplement thereto, shall have been filed (if required) with the Reviewing Authority and in any of the other Canadian Qualifying
Jurisdictions, as applicable, pursuant to the Shelf Procedures and the Commission pursuant to the instructions to Form F-10, (ii) when,
during any period when the delivery of a prospectus (whether physically or through compliance with Rule 172, 173 or any similar rule)
is required under the Act in connection with the offering or sale of the Shares, any amendment to the Registration Statement shall have
been filed or become effective (other than any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act),
(iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the
U.S. Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and,
upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement
and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b)
Subsequent Events. If, at any time on or after an Applicable Time but prior to the related Settlement Date, any event occurs
as a result of which the Registration Statement or U.S. Prospectus would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light of the circumstances under which they were made or the circumstances
then prevailing not misleading, the Company will (i) notify promptly the Lead Manager so that any use of the Registration Statement
or U.S. Prospectus may cease until such are amended or supplemented; (ii) amend or supplement the Registration Statement or Prospectuses
to correct such statement or omission; and (iii) supply any such amendment or supplement to the Managers in such quantities as a
Manager may reasonably request.
(c)
Notification of Subsequent Filings. During any period when the delivery of a prospectus relating to the Shares is required
(including in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered
under the Act, any event occurs as a result of which the Prospectuses as then supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement
the Prospectuses to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery
of the Prospectuses, the Company promptly will (i) notify the Managers of any such event, (ii) subject to Section 5(a), prepare
and file with the Commission an amendment or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption in use of the Prospectus and (iv) supply any supplemented
Prospectuses to the Managers in such quantities as a Manager may reasonably request.
(d)
Listing of Shares. During any period in which the U.S. Prospectus relating to the Shares is required to be delivered by
the Lead Manager under the Act with respect to a pending sale of the Shares (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Act), the Company will use its commercially reasonable efforts to cause the Shares to be approved
for listing on the TSX and the Trading Market and to qualify the Shares for sale under the securities laws of such jurisdictions as the
Lead Manager reasonably designates and to continue such qualifications in effect so long as required for the distribution of the Shares;
provided, however, that the Company shall not be required in connection therewith to qualify as a foreign corporation or
a dealer in securities, to otherwise qualify to do business in any jurisdiction where it is not now so qualified, to subject itself to
taxation in any jurisdiction where it is not so subject or to take any action that would subject it to service of process in suits (other
than those arising out of the offering or sale of the Shares) or to file a general consent to service of process in any jurisdiction where
it is not now subject.
(e)
Earnings Statements. As soon as practicable, the Company will make generally available to its security holders and to the
Managers an earnings statement or statements of the Company and its Subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158. For the avoidance of doubt, the Company’s compliance with the reporting requirements of the Exchange
Act shall be deemed to satisfy the requirements of this Section 4(e).
(f)
Delivery of Canadian Base Prospectus, Registration Statement, Form F-X and Prospectus Supplements. Upon the request of a
Manager, the Company will furnish to the Managers and counsel for the Lead Manager, without charge, signed copies of the Canadian Base
Prospectus, the Registration Statement, the Form F-X, the Prospectus Supplements (including any exhibits and amendments thereto) and,
so long as delivery of a prospectus by the Lead Manager or dealer may be required by the Act (including in circumstances where such requirement
may be satisfied pursuant to Rule 172, 173 or any similar rule), as many copies of the U.S. Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as a Manager may reasonably request; provided, however, that the Company shall not be required to
furnish any document (other than the Prospectuses) to the Managers to the extent such document is available on SEDAR+ or EDGAR. The Company
will pay the expenses of printing or other production of all documents relating to the offering.
(g)
Qualification of Shares. The Company will arrange, if necessary, for the qualification of the Shares for sale under the
laws of such jurisdictions as the Lead Manager may designate and will maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of
the offering or sale of the Shares, in any jurisdiction where it is not now so subject.
(h)
Free Writing Prospectus. The Company agrees that, unless the Company has or shall have obtained the prior written consent
of the Lead Manager, and the Manager agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, neither the Company nor any Manager, as the case may be, has made nor will it make any offer relating
to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company or any Manager, as applicable, with the Commission or retained by the
Company or any Manager, as applicable, under Rule 433. Any such free writing prospectus consented to by the Lead Manager or the Company
is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated
and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (ii) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(i)
Subsequent Equity Issuances. The Company shall not deliver any Sales Notice hereunder (and any Sales Notice previously delivered
shall not apply during such two (2) Trading Days) for at least two (2) Trading Days prior to any date on which the Company or any Subsidiary
offers, sells, issues, contracts to sell, contracts to issue or otherwise disposes of, directly or indirectly, any other Common Shares
or any Common Share Equivalents (other than the Shares), subject to Lead Manager’s right to waive this obligation, provided that,
without compliance with the foregoing obligation, the Company may issue and sell Common Shares pursuant to any employee equity plan, stock
ownership plan or dividend reinvestment plan of the Company in effect from time to time and set forth in the SEC Reports and the Company
may issue Common Shares issuable upon the conversion or exercise of Common Share Equivalents outstanding from time to time and set forth
in the SEC Reports.
(j)
Market Manipulation. Until the termination of this Agreement, the Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation in violation of the Act, Exchange Act or the rules and regulations thereunder of the price of any security
of the Company to facilitate the sale or resale of the Shares or otherwise violate any provision of Regulation M under the Exchange Act.
(k)
Notification of Incorrect Certificate. The Company will, at any time during the term of this Agreement, as supplemented
from time to time, advise the Lead Manager immediately after it shall have received notice or obtained knowledge thereof, of any information
or fact that would alter or affect any opinion, certificate, letter and other document provided to the Managers pursuant to Section 7
herein.
(l)
Certification of Accuracy of Disclosure. Upon commencement of the offering of the Shares under this Agreement (and upon
the recommencement of the offering of the Shares under this Agreement following the termination or a suspension of sales hereunder lasting
more than 30 Trading Days), and each time that (i) a new Registration Statement is filed and declared effective by the Commission, (ii)
the Registration Statement or Prospectuses shall be amended or supplemented, other than by means of Incorporated Documents, (iii) the
Company files its Annual Report on Form 40-F or Form 20-F under the Exchange Act (including any Form 40-F/A or Form 20-F/A that includes
amended audited financial information), (iv) the Company files or furnishes its unaudited financial statements and management’s
discussion and analysis on Form 6-K under the Exchange Act, (v) the Company files a Report on Form 6-K containing amended financial information
(other than information that is furnished and not filed), if the Lead Manager reasonably determines that the information in such Form
6-K is material or (vi) the Shares are delivered to the Lead Manager as principal at the Time of Delivery pursuant to a Terms Agreement
(such commencement or recommencement date and each such date referred to in (i), (ii), (iii), (iv) and (v) above, a “Representation
Date”), unless waived by the Lead Manager, the Company shall furnish or cause to be furnished to the Managers promptly a certificate
dated and delivered on the Representation Date, in form reasonably satisfactory to the Lead Manager to the effect that the statements
contained in the certificate referred to in Section 7(c) of this Agreement which were last furnished to the Managers are true and correct
at the Representation Date, as though made at and as of such date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectuses as amended and supplemented to such date) or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in said Section 7(c), modified as necessary to relate to the Registration Statement and the Prospectuses
as amended and supplemented to the date of delivery of such certificate.
(m)
Bring Down Opinions; Negative Assurance. Within five (5) Trading Days of each Representation Date, unless waived by the
Lead Manager, the Company shall furnish or cause to be furnished forthwith to the Managers and to counsel to the Lead Manager (i) the
written opinion and a negative assurance letter of United States counsel to the Company (“U.S. Company Counsel”) (ii)
the written opinion of Canadian counsel to the Company (“Canadian Company Counsel”) and (iii) the written opinion of
Tanzanian counsel to the Company (“Tanzanian Company Counsel” and, collectively with U.S. Company Counsel and Canadian
Company Counsel, “Company Counsel”), addressed to the Managers and dated and delivered within five (5) Trading Days
of such Representation Date, in form and substance reasonably satisfactory to the Lead Manager, including a negative assurance letter.
The requirement to furnish or cause to be furnished an opinions (but not with respect to a negative assurance representation of U.S. Company
Counsel) under this Section 5(l) shall be waived for any Representation Date other than a Representation Date on which a new Registration
Statement is filed and declared effective by the Commission or a material amendment to the Registration Statement or Prospectus is made
or the Company files its Annual Report on Form 40-F or Form 20-F or a material amendment thereto under the Exchange Act, unless the Lead
Manager reasonably requests such deliverables required by this Section 5(l) in connection with a Representation Date, upon which request
such deliverables shall be deliverable hereunder.
(n)
Auditor Bring Down “Comfort” Letter. Within five (5) Trading Days of each Representation Date, unless waived
by the Lead Manager, the Company shall cause (1) the Company’s auditors (the “Accountants”), or other independent
accountants satisfactory to the Lead Manager forthwith to furnish the Managers a letter, and (2) the Chief Financial Officer of the
Company forthwith to furnish the Managers a certificate, in each case dated within five (5) Trading Days of such Representation Date,
in form and substance satisfactory to the Lead Manager, of the same tenor as the letters and certificate referred to in Section 7(d) of
this Agreement but modified to relate to the Registration Statement and the Prospectuses, as amended and supplemented to the date of such
letters and certificate; provided, however, that the requirement to furnish or cause to be furnished a “comfort”
letter under this Section 5(m) shall be waived for any Representation Date other than a Representation Date on which a new Registration
Statement is filed and declared effective by the Commission or a material amendment to the Registration Statement or Prospectus is made
or the Company files its Annual Report on Form 40-F or Form 20-F or a material amendment thereto under the Exchange Act, unless the Lead
Manager reasonably requests the deliverables required by this Section 5(m) in connection with a Representation Date, upon which request
such deliverables shall be deliverable hereunder.
(o)
Due Diligence Session. Upon commencement of the offering of the Shares under this Agreement (and upon the recommencement
of the offering of the Shares under this Agreement following the termination of a suspension of sales hereunder lasting more than thirty
(30) Trading Days), and at each Representation Date, the Company will conduct a due diligence session, in form and substance, reasonably
satisfactory to the Lead Manager, which shall include representatives of management, Accountants and Company Counsel. The Company shall
cooperate timely with any reasonable due diligence request from or review conducted by the Managers or their respective agents from time
to time in connection with the transactions contemplated by this Agreement, including, without limitation, providing information and available
documents and access to appropriate corporate officers and the Company’s agents during regular business hours, and timely furnishing
or causing to be furnished such certificates, letters and opinions from the Company, its officers and its agents, as the Lead Manager
may reasonably request. The Company shall reimburse the Lead Manager for Lead Manager’s counsel’s fees in each such Representation
Date, up to a maximum of $2,500 per Representation Date, plus any incidental expense incurred by the Lead Manager in connection therewith.
(p)
Acknowledgment of Trading. The Company consents to the each of the Managers trading in the Common Shares for such Manager’s
own account and for the account of its clients at the same time as sales of the Shares occur pursuant to this Agreement or pursuant to
a Terms Agreement.
(q)
Disclosure of Shares Sold. The Company will disclose in its Annual Report on Form 40-F or 20-F and its interim management’s
discussion and analysis prepared and filed in accordance with Canadian Securities Laws the number of Shares sold through the Managers
under this Agreement, the Net Proceeds to the Company and the compensation paid by the Company with respect to sales of Shares pursuant
to this Agreement during the relevant quarter; and, if required by any subsequent change in Commission policy or request, more frequently
by means of a Report on Form 6-K or a further U.S. Prospectus Supplement.
(r)
Rescission Right. If to the knowledge of the Company, the conditions set forth in Section 7 shall not have been satisfied
as of the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result
of an offer to purchase solicited by the Manager the right to refuse to purchase and pay for such Shares.
(s)
Bring Down of Representations and Warranties. Each acceptance by the Company of an offer to purchase the Shares hereunder,
and each execution and delivery by the Company of a Terms Agreement, shall be deemed to be an affirmation to the Managers that the representations
and warranties of the Company contained in or made pursuant to this Agreement are true and correct as of the date of such acceptance or
of such Terms Agreement as though made at and as of such date, and an undertaking that such representations and warranties will be true
and correct as of the Settlement Date for the Shares relating to such acceptance or as of the Time of Delivery relating to such sale,
as the case may be, as though made at and as of such date (except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectuses as amended and supplemented relating to such Shares).
(t)
Reservation of Shares. The Company shall ensure that there are at all times sufficient Common Shares to provide for the
issuance, free of any preemptive rights, out of its authorized but unissued Common Shares or Common Shares held in treasury, of the maximum
aggregate number of Shares authorized for issuance by the Board pursuant to the terms of this Agreement. The Company will use its commercially
reasonable efforts to cause the Shares to be listed for trading on the Trading Market and to maintain such listing.
(u)
Obligation Under Exchange Act. During any period when the delivery of a prospectus relating to the Shares is required (including
in circumstances where such requirement may be satisfied pursuant to Rule 172, 173 or any similar rule) to be delivered under the
Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the regulations thereunder.
(v)
DTC Facility. The Company shall cooperate with the Managers and use its reasonable efforts to permit the Shares to be eligible
for clearance and settlement through the facilities of DTC.
(w)
Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares in the manner set forth in the Prospectus.
(x)
Filing of Prospectus Supplements. In the event that any sales are made pursuant to this Agreement which are not made in
an “at the market distribution” under NI 44-102, including, without limitation, any Placement pursuant to a Terms Agreement,
and the Company believes, in its sole discretion, upon consultation with counsel and consultation in good faith with the Lead Manager,
that the filing of a Canadian Prospectus Supplement and/or a U.S. Prospectus Supplement is required under the applicable Canadian and/or
United States securities laws, the Company shall file a Canadian Prospectus Supplement with the Reviewing Authority, in accordance with
the Shelf Procedures, and a U.S. Prospectus Supplement, in accordance with the instructions to Form F-10, describing the terms of such
transaction, the amount of Shares sold, the price thereof, the applicable Manager’s compensation, and such other information as
may be required pursuant the Shelf Procedures and the instructions to Form F-10.
(y)
Additional Registration Statement. To the extent that the Registration Statement is not available for the sales of the Shares,
as contemplated by this Agreement, the Company shall file a new registration statement with respect to any additional Common Shares necessary
to complete such sales of the Shares and shall cause such registration statement to become effective as promptly as practicable. After
the effectiveness of any such registration statement, all references to “Registration Statement” included in this Agreement
shall be deemed to include such new registration statement, including all documents incorporated by reference therein pursuant to Form
F-10, and all references to “U.S. Base Prospectus” included in this Agreement shall be deemed to include the final
form of base prospectus, including all documents incorporated therein by reference, included in any such registration statement at the
time such registration statement became effective.
6.
Payment of Expenses. The Company agrees to pay the costs and expenses incident to the performance of its obligations under
this Agreement, whether or not the transactions contemplated hereby are consummated, including without limitation: (i) the preparation,
printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto),
the Prospectuses and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration
Statement, the Prospectuses, and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each
case, be reasonably requested by the Managers for use in connection with the offering and sale of the Shares; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the Shares, including any stamp or transfer taxes in connection with
the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum
and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the
registration of the Shares under the Exchange Act, if applicable, and the listing of the Shares on the Trading Market and the TSX; (vi) any
registration or qualification of the Shares for offer and sale under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the Lead Manager relating to such registration and qualification); (vii) the
transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective
purchasers of the Shares; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; (ix) the filing fee under FINRA Rule 5110; (x) the reasonable fees and expenses of the Lead
Manager’s counsel, not to exceed $50,000 (excluding any periodic due diligence fees provided for under Section 5(n)), which shall
be paid at the Execution Time; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
7.
Conditions to the Obligations of the Managers. The obligations of the Managers under this Agreement and any Terms Agreement
shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the
Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and the Time of Delivery, (ii) the performance
by the Company of its obligations hereunder and (iii) the following additional conditions:
(a)
Filing of Prospectus Supplements. Each of the Canadian Prospectus Supplement and the U.S. Prospectus Supplement shall have
been filed in the manner contemplated by this Agreement; any further Prospectus Supplements required by Canadian Securities Laws, the
Act or other applicable laws, rules or regulations shall have been timely filed; any other material required to be filed by the Company
pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for
such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to
its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b)
Delivery of Opinion. The Company shall have caused U.S. Company Counsel, Canadian Company Counsel and Tanzanian Company
Counsel to furnish to the Managers their respective opinions and, with respect to U.S. Company Counsel, the negative assurance statement,
dated as of such date and addressed to the Managers in form and substance acceptable to the Lead Manager.
(c)
Delivery of Officer’s Certificate. The Company shall have furnished or caused to be furnished to the Managers a certificate
of the Company signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company,
dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectuses,
any Prospectus Supplement and any documents incorporated by reference therein and any supplements or amendments thereto and this Agreement
and that:
(i)
the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect
as if made on such date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such date;
(ii)
no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and
no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the Registration Statement and the Prospectuses, there has been
no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated
in the Registration Statement and the Prospectuses.
(d)
Delivery of Accountants’ “Comfort” Letter. The Company shall have requested and caused the Accountants
to have furnished to the Managers letters (which may refer to letters previously delivered to the Managers), dated as of such date, in
form and substance satisfactory to the Lead Manager, confirming that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed
an audit of any audited financial information of the Company, and/or a review of any unaudited interim financial information of the Company
included or incorporated by reference in the Registration Statement and the Prospectuses and providing customary “comfort”
as to such review in form and substance satisfactory to the Lead Manager.
(e)
No Material Adverse Event. Since the respective dates as of which information is disclosed in the Registration Statement
and the Prospectuses, except as otherwise stated therein, there shall not have been (i) any change or decrease in previously reported
results specified in the letter or letters referred to in paragraph (d) of this Section 7 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company
and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth
in or contemplated in the Registration Statement, the Prospectuses and the Incorporated Documents (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Lead Manager, so material
and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Incorporated Documents and the Prospectuses (exclusive of any amendment or supplement
thereto).
(f)
Payment of All Fees. The Company shall have paid the required Commission filing fees relating to the Shares within the time
period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r) of the Act.
(g)
No FINRA Objections. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms
and arrangements under this Agreement.
(h)
Shares Listed on Trading Market. The Shares shall have been listed and admitted and authorized for trading on the Trading
Market and, to the extent applicable, on the TSX, and satisfactory evidence of such actions shall have been provided to the Manager.
(i)
Other Assurances. Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to
the Lead Manager such further information, certificates and documents as the Lead Manager may reasonably request.
If any of the conditions specified in this Section
7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Lead Manager and counsel for the Lead Manager,
this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time
of Delivery, as applicable, by the Lead Manager. Notice of such cancellation shall be given to the Company in writing or by telephone
and confirmed in writing by electronic mail.
The documents required to be delivered by this Section
7 shall be delivered to the office of Ellenoff Grossman & Schole LLP, counsel for the Lead Manager, at 1345 Avenue of the Americas,
New York, New York 10105, email: capmkts@egsllp.com, on each such date as provided in this Agreement.
8.
Indemnification and Contribution.
(a)
Indemnification by Company. The Company agrees to indemnify and hold harmless each of the Managers, the directors, officers,
employees and agents of each of the Managers and each person who controls each of the Managers within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed or
in any amendment thereof, or in the Base Prospectuses, any Prospectus Supplement, the Prospectuses, any Issuer Free Writing Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, or arise out of or are based upon any Proceeding, commenced
or threatened (whether or not a Manager is a target of or party to such Proceeding) or result from or relate to any breach of any of the
representations, warranties, covenants or agreements made by the Company in this Agreement, and agrees to reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be liable to a Manager in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by such
Manager specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company may otherwise
have.
(b)
Indemnification by each Manager. Each of the Managers, severally and not jointly with the other Manager, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to
such Manager, but only with reference to written information relating to such Manager furnished to the Company by such Manager specifically
for inclusion in the documents referred to in the foregoing indemnity; provided, however, that in no case shall a Manager
be responsible for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder to such Manager as agreed by the
Managers in writing. This indemnity agreement will be in addition to any liability which a Manager may otherwise have.
(c)
Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will
not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory
to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d)
Contribution. In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and each of the Managers, severally
and not jointly with the other Manager, agree to contribute to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”)
to which the Company and a Manager may be subject in such proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by such Manager on the other from the offering of the Shares; provided, however, that in no
case shall a Manager be responsible for any amount in excess of the Broker Fee applicable to the Shares and paid hereunder to such Manager
as agreed by the Managers in writing. If the allocation provided by the immediately preceding sentence is unavailable for any reason,
the Company and such Manager, severally and not jointly with the other Manager, severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the Company on the one hand and such Manager on the other in
connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by a Manager shall be deemed to be equal to the Broker Fee applicable to the Shares and paid hereunder to such
Manager as agreed by the Managers in writing. Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or a Manager on the other, the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The Company and each of the Managers, severally and not jointly
with the other Manager, agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls a Manager within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent
of such Manager shall have the same rights to contribution as such Manager, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
9.
Termination.
(a)
The Company shall have the right, by giving written notice to the Lead Manager as hereinafter specified, to terminate the provisions
of this Agreement relating to the solicitation of offers to purchase the Shares in its sole discretion at any time upon ten (10) Business
Days’ prior written notice. Any such termination shall be without liability of any party to any other party except that (i) with
respect to any pending sale, through the Lead Manager for the Company, the obligations of the Company, including in respect of compensation
of the Managers, shall remain in full force and effect notwithstanding the termination and (ii) the provisions of Sections 6,
7, 8, 9, 10, 11, 13, 15, 16 and 17 of this Agreement shall remain in full force and effect notwithstanding such termination.
(b)
The Lead Manager shall have the right, by giving written notice as hereinafter specified, to terminate the provisions of this Agreement
relating to the solicitation of offers to purchase the Shares in its sole discretion at any time. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17 of this Agreement
shall remain in full force and effect notwithstanding such termination.
(c)
This Agreement shall remain in full force and effect until such date that this Agreement is terminated pursuant to Sections 9(a)
or (b) above or otherwise by mutual agreement of the parties; provided that any such termination by mutual agreement shall in all
cases be deemed to provide that Sections 6, 7, 8, 9, 10, 11, 13, 15, 16 and 17 of this Agreement shall remain in full force and effect.
(d)
Any termination of this Agreement shall be effective on the date specified in such notice of termination, provided that such termination
shall not be effective until the close of business on the date of receipt of such notice by the Manager or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date or Time of Delivery for any sale of the Shares, such sale of the Shares
shall settle in accordance with the provisions of Section 3(b) of this Agreement.
(e)
In the case of any purchase of Shares by the Lead Manager pursuant to a Terms Agreement, the obligations of the Lead Manager pursuant
to such Terms Agreement shall be subject to termination, in the absolute discretion of the Lead Manager, by prompt oral notice given to
the Company prior to the Time of Delivery relating to such Shares, if any, and confirmed promptly by electronic mail, if since the time
of execution of the Terms Agreement and prior to such delivery and payment, (i) trading in the Common Shares shall have been suspended
by the Commission or the Trading Market or trading in securities generally on the Trading Market shall have been suspended or limited
or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal
or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in
the sole judgment of the Lead Manager, impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated
by the Prospectuses (exclusive of any amendment or supplement thereto).
10.
Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Managers set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by the Managers or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8, and will survive delivery of and payment for the Shares.
11.
Notices. All communications hereunder will be in writing and effective only on receipt, and will be mailed, delivered, or
e-mailed to the addresses of the Company and each of the Managers, respectively, set forth on the signature page hereto.
12.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers, directors, employees, agents and controlling persons referred to in Section 8, and no other person will have any
right or obligation hereunder.
13.
No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Shares pursuant to this Agreement
is an arm’s-length commercial transaction between the Company, on the one hand, and each Manager and any affiliate through which
it may be acting, on the other, (b) each Manager is acting solely as sales agent, and as principal with respect to the Lead Manager,
in connection with the purchase and sale of the Company’s securities and not as a fiduciary of the Company and (c) the Company’s
engagement of each Manager in connection with the offering and the process leading up to the offering is as independent contractors and
not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with
the offering (irrespective of whether a Manager has advised or is currently advising the Company on related or other matters). The Company
agrees that it will not claim that a Manager has rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar
duty to the Company, in connection with such transaction or the process leading thereto.
14.
Integration. This Agreement and any Terms Agreement supersede all prior agreements and understandings (whether written or
oral) between the Company and each of the Managers with respect to the subject matter hereof.
15.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Lead Manager. Roth acknowledges and agrees that an amendment to
this Agreement may terminate Roth as a Manager and terminate this Agreement with respect to Roth. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any
subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right.
16.
Applicable Law. This Agreement and any Terms Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the State of New York. Each of the Company and the
each of the Managers: (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted
exclusively in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York,
(ii) waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents
to the exclusive jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Company and each of the Managers further agrees to accept and
acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County
of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the
Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the
Company, in any such suit, action or proceeding, and service of process upon each of the Managers mailed by certified mail to such Manager’s
address shall be deemed in every respect effective service process upon such Manager, in any such suit, action or proceeding. If either
party shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
17.
Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any terms agreement or the transactions
contemplated hereby or thereby.
18.
Counterparts. This Agreement and any Terms Agreement may be signed in one or more counterparts, each one of which shall
be an original, with the same effect as if the signatures thereto and hereto were upon one and the same agreement. Counterparts may be
delivered via electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions
Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
19.
Headings. The section headings used in this Agreement and any Terms Agreement are for convenience only and shall not affect
the construction hereof.
***************************
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent
a binding agreement among the Company and the Managers.
Very truly yours,
trx gold corporation
By: /s/ Stephen Mullowney
Name: Stephen Mullowney
Title: Chief Executive Officer
Address for Notice:
277 Lakeshore Road East, Suite 403
Oakville, Ontario
Canada L6J 1H9
Attention: Stephen Mullowney
Email: s.mullowney@TRXgold.com
The foregoing Agreement is hereby confirmed and accepted as of the date first written
above.
H.C. WAINWRIGHT & CO., LLC
|
By: /s/ Edward D. Silvera
Name: Edward D. Silvera
Title: Chief Operation Officer
|
Address for Notice:
430 Park Avenue
New York, New York 10022
Attention: Chief Executive Officer
Email: notices@hcwco.com
ROTH CAPITAL PARTNERS, LLC
|
By: /s/ Aaron M. Gurewitz
Name: Aaron M. Gurewitz
Title: President & Head of Investment Banking
|
Address for Notice:
888 San Clemente Drive
Newport Beach, CA 92660
Attention: ______
Email: _______
Form of Terms Agreement
ANNEX I
TRX gold Corporation
TERMS AGREEMENT
Dear Sirs:
TRX
Gold Corporation (the “Company”) proposes, subject to the terms and conditions stated herein and in the At The Market
Offering Agreement, dated February 7, 2025 (the “At The Market Offering Agreement”), between the Company and H.C. Wainwright
& Co., LLC (the “Lead Manager”) and Roth Capital Partners, LLC (“Roth” and, collectively with
the Lead Manager, the “Managers” and, each, a “Manager”), to issue and sell to Lead Manager the
securities specified in the Schedule I hereto (the “Purchased Shares”).
Each
of the provisions of the At The Market Offering Agreement not specifically related to the solicitation by the Lead Manager, as agent of
the Company, of offers to purchase securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this
Terms Agreement to the same extent as if such provisions had been set forth in full herein. Each of the representations and warranties
set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement and the Time of Delivery, except that
each representation and warranty in Section 4 of the At The Market Offering Agreement which makes reference to the Prospectuses (as
therein defined) shall be deemed to be a representation and warranty as of the date of the At The Market Offering Agreement in relation
to the Prospectuses, and also a representation and warranty as of the date of this Terms Agreement and the Time of Delivery in relation
to the Prospectuses as amended and supplemented to relate to the Purchased Shares.
An
amendment to the Registration Statement (as defined in the At The Market Offering Agreement), or a supplement to the Prospectuses, as
the case may be, relating to the Purchased Shares, in the form heretofore delivered to the Lead Manager is now proposed to be filed with
the Securities and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the At The Market Offering Agreement which are incorporated herein by reference, the
Company agrees to issue and sell to the Lead Manager and the latter agrees to purchase from the Company the number of shares of the Purchased
Shares at the time and place and at the purchase price set forth in the Schedule I hereto.
If the foregoing is in accordance
with your understanding, please sign and return to us a counterpart hereof, whereupon this Terms Agreement, including those provisions
of the At The Market Offering Agreement incorporated herein by reference, shall constitute a binding agreement between the Lead Manager
and the Company.
TRX gold Corporation
By:__________________________________________
Name:
Title:
ACCEPTED as of the date first written above.
H.C. WAINWRIGHT & CO., LLC
By:__________________________________________
Name:
Title:
Schedule I
53
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